CASE 7: Homicide and the Law in 18th Century China

The 17th century Jesuit Louis Le Comte was astounded that Chinese magistrates could be dismissed for abusing their powers. In a letter that was later published in Europe, he attempted to explain why Europeans, unlike the Chinese, did not dismiss abusive magistrates:

We ought indeed to punish every offender; yet it would be natural to bear with a mandarin who is negligent of his office for want of understanding or application, who is too mild or over severe, if taking away his place would ruin his family whose fortune it may be was laid out in the purchase of it, when as if a place be disposed only by donation, the prince who gave it may easily without any disturbance take it from one, and gratify another with it.

In this passage Le Comte inadvertently reveals some features of European practice at the time he wrote in the late 17th century:

When not inherited, offices were often purchased as an investment.

Family was more important than public law.

Family was important, because in Europe, political authority was a function of social status, and social status was generally inherited. But why would purchasing an office be a good investment? Le Comte alludes to this in the next passage and inadvertently discloses another difference between Chinese and Western concepts of law at that time:

Lastly, [in China] no fees are paid for the administration of justice. The judge whose office cost him nothing, and who has his salary stated, can require nothing of the parties at law; which empowers every poor man to prosecute his own rights, and frees him from being oppressed by the opulence of his adversary, who can’t be brought to do justly and reasonably because the other has not money.

Louis Le Comte, Memoires and Observations. . . made in a late journey through the empire of China, (London : Printed for Benj. Tooke …, and Sam. Buckley …, 1697, 282-283.

What Le Comte is saying here, is that European judges didn’t receive a government salary but earned their income from “fees” paid by the litigants. Of course such fees would be considered bribes today, and similar payment would have been treated as bribes in China also, but in early modern Europe such “fees” were both normal and legal. This is why purchasing an office was a worthwhile investment. Under those circumstances, of course, the wealthier litigant would almost always be the victor. Providing a fixed salary for the judge would not eliminate bribes but, as Le Comte observes, it would help to ensure more equable treatment for the litigants irrespective of class background. Le Comte recommended this and other Chinese practices to Europeans as reforms. His book was banned, and extant copies were burned.

As late as 1770 Benjamin Franklin’s friend Abbé Raynal wrote a book likewise recommending the Chinese practice of applying the law equally to all, including the nobility. Raynal was exiled and his book was burned. It may be only after the American and French revolutions that the ideal of equality began to supersede privilege (what was then called “rights”) in Western legal systems. Even so, Carolyn Conley’s study of Victorian legal practice shows that class background continued to be the determining factor in legal cases of many kinds, with lower class defendants being far more likely to be judged guilty. (Carolyn A. Conley The Unwritten Law: Criminal Justice in Victorian Kent (New York, 1991)).